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Marriage Equality and Religious Freedom

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The proposal by the coalition government for a consultation on gay marriage has become very controversial. Over 440000 people have signed the petition from the Coalition for Marriage, opposing the government’s move; but a Populus poll in 2009 found that 61% of the public believe: “Gay couples should have an equal right to get married, not just to have civil partnerships.”

Not only is opinion divided, but myths and misinformation are common on both sides of the debate. It
It is important to understand exactly what this debate is about; and to acknowledge the strongly held opinions on both sides.

There are currently three separate arrangements available:

Religious marriages between a man and a woman

Civil marriages between a man and a woman

Civil partnerships between two men, or between two women.

Religious marriages are only legally civil marriages as well if a separate ceremony (signing the register) accompanies the religious service, and Christian churches are registered with the state to be able to perform that function.

The concession originally made to the Churches was that civil partnerships were NOT civil marriages, that religious institutions could not register to have civil partnerships at their premises, and that religious ceremony could not be held at civil partnership.

The Equality Act 2010 introduced a change to allow (though not compel) religious organisations to host civil partnerships. Religious language is also permitted within the ceremonies.

It is necessary to understand how the current situation came about, as a compromise between the desire for the Labour government to introduce equality for lesbian and gay couples, and the concerns by religious groups about the meaning of marriage being redefined.

For the overwhelming majority of Christians, marriage is the sacred union between a man and a woman based upon scriptural authority. This is also true for most schools of Islamic thought and for Orthodox Jews. In addition to scriptural authority, the Christian doctrine of Natural Law (lex naturalis) and the Islamic doctrine that the natural world is a divine revelation (al-Kitab al-manshur) are held up by some religious people as evidence that sex which can lead to procreation of children is especially virtuous.

Furthermore, as a social institution, marriage is fundamentally important to Christians, as they see it as a basic unit of solidarity and compassion, and that central to the traditional marriage is the production and rearing of children.

Notwithstanding socialist or feminist critiques of power relationships and patriarchy within the family, there is of course some value in the Christian view, as it reflects the experience of millions of people, at least partially.

That is why the churches campaigned for there to be a legal distinction between marriage and civil partnership.

However, there is a debate within the religious communities about whether the definition of marriage as only being between a man and a woman is something that reflects the social conditions of a previous era; and there is a debate within the Anglican communion that the church should solemnise civil partnerships. That is, while people may believe that scripture is of divine providence and is the word of God, there is still space to recognise that the recording of scripture and the mechanisms of its interpretation are social human activities, and therefore subject to revision.

There is a lot to unravel there; but the current arrangements have the following unfortunate (and deliberate) consequence: that there is a legal distinction between same gender partnerships, and heterosexual civil marriages.

The Equal Love campaign argues compellingly that there should be an end to the twin legal bans on same-sex civil marriages and opposite-sex civil partnerships. Robert Wintemute, Professor of Human Rights Law at King’s College London, argues that as there are no significant differences in the rights and responsibilities involved in civil marriages and civil partnerships, there can be no justification for the segregation of gay and straight couples into two mutually exclusive legal systems. It is discrimination based on sexual orientation.

The government’s consultation is only about the proposal to equalise civil partnerships and civil marriages. There is no proposal whatsoever to interfere with the freedom of religious institutions to define marriage in whatever way they choose. So there is some irresponsible scare mongering from church groups, which could encourage homophobia.

So why is there so much controversy? Some church leaders, like the Archbishop of York, Dr John Sentamu, say that the government cannot define what marriage means. However, this argument was really lost as long ago as 1857 when the Matrimonial Causes Act legalised divorce; even though Christian churches could still refuse to acknowledge divorces and choose not to solemnise second marriages. This means that the state does already define marriage contrary to traditional Christian doctrine.

The opponents of marriage equality point out that currently both civil marriages and civil partnerships mirror the concept of monogamous romantic and sexual love derived from traditional religious marriage. Other loving and committed relationships, for example, between a parent and child, or between several people in a polyandrous relationship, cannot be solemnised by law. They argue that once marriage is redefined, then it could be redefined again to include other relationships.

While religious institutions are entitled to argue this position, it is a question for the secular political authorities, democratically accountable to the electorate, to define civil marriage. Arguing against hypothetical future redefinitions is a red herring.

Some campaigners against marriage equality, have used offensive and inflammatory language to denigrate the love and commitment of gay and lesbian couples. Undoubtedly some objections to marriage equality are simply homophobia.

However it is also important that religious communities can define for themselves what they believe a marriage to be within their own faith community. Unfortunately some of Peter Tatchell’s arguments are inflamatory and would encourage the feeling among Christians that they are under attack, for example Tatchell insulting the authority of the Archbishop of York, and arguing for Anglican clergy to defy the authority of the House of Bishops. Surely is we accept that the churches do not have the right to define marriage for peopple outside their faith community, then we have to respect the church’s rights to make its own decisions by its own processes?

Nevertheless, the government has a right to define what marriage is by law; and therefore marriage equality should be welcomed and campaigned for.

58 comments on “Marriage Equality and Religious Freedom”

Individuals who are partners but chose not to marry or indulge any recognition of their relatonship by ether the state or church, should also enjoy full equality in the law and for tax purposes.

I fully support the right of those to marry to enjoy such equaliy (though quite what a weding has to do with lesbian and gay liberation remains beyond me) but what about the rights of those who want nothing to do with the institution of marriage? What about our rights.

A thoughtful exploration Andy but as an Anglican Priest who has been Blessing same sex relationships for years I do not find Peter’s challenge at all inappropriate and I fear you might be unintentionally missing the point.

There is a need to support Lesbian and Gay Christians as an oppressed group in their right to a religious ceremony. You end up supporting the hierarchies attempt to define itself as ‘the Church’ when in reality the church is a complex community and there is a struggle within the church for the religious freedom of Lesbian and Gay people to be recognised as Lesbian or Gay and Christian.

Surely it is a question of supporting the struggle for liberation and openly supporting those in the church who are articulating a liberative theology of sexuality – there is a fierce ‘church struggle’ on this issue, with components of the opposition becoming increasingly shrill and seeking to deny LGBT Christians the status of Christian.

Why not ask a LGBT Christian campaigner to submit a blog on this from their perspective – might I suggest Colin Coward of Changing Attitude. I will happily provide you with contact details

Simple solution: secularise all marriage and legal registration of relationships. Religious believers can then negotiate within their own denominations about any additional religious ceremonies they may or may not want to hold, without any state interference.

@2 While I do not necessarily disagree with your point, it is typical of the self-absorbtion and presumption of the Anglican Church that it believes speaks for all of Christianity in Britain.

This question will not be decided in the general synod of one shrinking denomination.

Other religious definitions of marriage exist within Catholicism (which may become the largest Christian denomination in Britain over the next few decades), non-conformism and Orthodoxy. Not to mention within Islam, Judaism, Hinduism etc.

This is a wider question than the machinations within the CoE, which Andy’s article reflects.

Martel, Andy refers specifically to the Churches and to Peter Tatchell’s challenge to Anglican Clergy which is what I was addressing. As an Anglican Priest who is also an Authorised Minister of the Methodist Church and heavily involved in the Inter Faith Movement, I totally agree that it is wider than the Anglican church hence my pointing to links to LGCM which is a non demoniational movement for Lesbian and Gay Christians and MCC a positively Gay affirming international Christian Movement. Re other faith traditions Liberal and Reform Judaism have very positive approaches to LGBT people with openly Gay and Lesbian Rabbis. Imman is a support group for Lesbian and Gay Muslims and this weekend sees the 3rd conference of Cutting Edge Consortium which seeks to promote Lesbian and Gay Equality in all Faith Communities https://sites.google.com/site/cuttingedgeconsortium1/.

My point stands that there is a struggle developing within all faith communities concerning the LGBT issue and religious LGBT people should be supported in their struggle against institutional Homophobia and Transphobia and it is their voices that we should be seeking to highlight in this debate.

RevdRay: My point stands that there is a struggle developing within all faith communities concerning the LGBT issue and religious LGBT people should be supported in their struggle against institutional Homophobia and Transphobia and it is their voices that we should be seeking to highlight in this debate.

I am very happy with this. We should give voice and encouragement for people within religious communities, especially when their lack of conformity to stereotypical perceptions measn the mainstream media marginalises them, and their views.

That is a different issue from people outside a faith community effectively lecturing those within it. It would be pernicious for example for atheists to adopt the view that the Catholic church is somehow “worse” than the Anglican church, due to issues like LGBT rights.

There is actually a reason for giving special attention to the C of E, which is that when these issues come up, it is only Anglican Bishops in the House of Lords, and it does seem that they adopt an ecumenical approach to their responsibility on these moral issues, reflecting the religious diversity of modern Britain.

Once you break the symbolic link with religious marriage, then why should sexual and romantic relationships be given any state recognition?

Why not allow two siblings who cohabit in a loving but non-romantic relationship to have a civil partnership? But if you do that, and also make marriage and civil artnership equal, how can you justify preventing a brother and sister marrying.

Not all the arguments from those opposed to marriage equality are silly.

“Once you break the symbolic link with religious marriage, then why should sexual and romantic relationships be given any state recognition?”

A very good question. There is a case for the state having the right to get involved in partnerships involving care and responsibility for children – and it has that right anyway, whether or not the parents or guardians are married. But other than that, why not be really radical? Let’s abolish marriage altogether! Bingo – instant equality!

Thanks Andy I’ll PM you Colin’s details. I’m not sure what to make of what else you say. I think you are trying to be admirably nuanced and thoughtful in your approach to religion but I can’t help feeling as a Christian who works alongside LGBT Christians campaigning for their rights within the Church, that unintentionally you are potentially turning your back on the rights of LGBT Christians and their religious freedom in favour of a view of religious freedom that is rooted in 20th century Marxist ideas of how to deal with religious communities as monolithic structures rather than a more pluralistic and multiple understanding of religious identity that recognises that religions are movements in the process of change and development.

@11 The bishops may adopt an ecumenical approach, however well intentioned, but it is often not at other’s behest. It chimes with the Anglican Church paternally appointing itself to speak for other’s religosity.

In an appointed chamber I see nothing wrong with the representatives of religious faith, but it would make far more sense to have representatives of other faith communities as well.

I do not necessarily think it is productive for well-meaning Anglicans/Methodists to start telling other religions what is an acceptable version of their faith.

Andy is wrong. Religious communities should not have the right to discriminate against gay people.

If a church bars a couple from marrying on their premises on grounds of sexuality it should be treated no differently to a hotel that refuses to host their reception on grounds of their sexuality. Why should one act of discrimination be illegal but the other sanctioned by law?

What about a church that refuses to marry a mixed race couple? That is probably the official doctrinal position of some churches in America.

@17 What you are effectively arguing is that the state should police religious communities to ensure compliance with its own proclamations. Like happened with the Reich Church.

You are arguing that the state should have the right to dictate the beliefs of voluntary associations. This is completely at odds with an open society that tolerates a plurality of beliefs.

As with any voluntary association if you don’t like their beliefs you can tell them to get stuffed and join another. Which is much better for a free society than the state regulating the beliefs of civil society.

#20 Agreed, but this whole discrimination argument would be removed if the state took sole responsibility for performing legally recognised marriage and required a separate state ceremony (even if it took the form of a rubber stamping exercise) in respect of anything carried out in a place of worship.

There’s too much having cake and eating it for my liking (no pun intended).

And what would help even more would be disestablishment of the Anglican Church.

RevdRay: unintentionally you are potentially turning your back on the rights of LGBT Christians and their religious freedom in favour of a view of religious freedom that is rooted in 20th century Marxist ideas of how to deal with religious communities as monolithic structures rather than a more pluralistic and multiple understanding of religious identity that recognises that religions are movements in the process of change and development

Isn’t the truth that both conceptual models coexist in a complex reality?

For example with the Catholic church, the institutional heirarchy is clearly defined, but there is a wide diversity of views and practice among the communion, and various advocacy groups. We can’t afford to ignore any part of that complex reality.

What happens is that individuals make choices, giving their own weight to the views of the church, and assessing the options open to them from state and from their religious community. Over time in a multi-cultural society there tends to be a convergence of individual choices towards the social norm; and this affects an evolution of thought within religious communities.

However, it is dangerous to pursue the idea that people who are outside a faith community or organised religious institution have the right to involve themselves in campaigning for change within it.

This is particularly the case given that religiously inspired prohibitions and injunctions often represent codification of the mores of particular societies in specific circumstances.

In a multi-cultural society, there will often be immigrant communities who reflect a mixture of both the social expectations of the British society they now live in, and also attitudes and beliefs from their heritage.

the process of evolution and reassessment within religions will also go at dfferent paces, so that there will be those minded to refrm, and those minded to stay true to older interpreations. That is particularly true in immigrant communities where legacy beliefs can be associated with issues of identity.

Outsiders should not directly involve themselves in such debates, but should rather find a way to ensure that alternative choices are available for individuals; and that reforming voices are not marginalised.

For example, the problem for enchained women in orthodox Jewish communities whose husband will not consent to divorce at a Beth Din cannot be solved by lecturing that community about its sexism! the woman already has the choice of both civil divorce and divorce through a liberal Beth Din. The pressure on her is not that she cannot find a mechanism for divorce, but that she cannot find acceptance in her own community.

Outside criticism could only entrench attitudes, while gradual evolution and muddling through creates a situation where individuals have choices, and social pressure works towards liberalisation.

Incidently, the civil benefits and obligations are the same for married people and civil partners, they are:

Civil Partners must be treated the same as married couples on a wide range of legal matters, including:

• tax, including Inheritance Tax
• employment benefits
• most state and occupational pension benefits
• income-related benefits, tax credits and child support
• their duty to provide reasonable maintenance for their civil partner and any children of the family
• ability to apply for parental responsibility for their civil partner’s child
• inheritance of tenancy agreements
• protection from domestic violence
• immigration and nationality purposes

The social institution of marriage originally started as a contract for a man and woman to live together in the expectation that there would normally be children. Tax incentives followed as a social recognition of the value of parents being in a committed relationship, and because of the public interest in people having children. There was also a public interest of providing a family wage for men to ensure that women had a choice to stay at home to look after children. Even in our more relaxed times regarding gender roles, it is still better in early years for a child to be looked after by one of its own parents.

Religious significance was given to marriage because having a child together is a pretty amazing thing, and as an ideological reinforcement of social expectations. Only in relatively recent history has marriage been slightly decoupled from the close association with planned parenthood, with more elevated emphasis on validation of a stable loving relationship

In reality, there is no good reason why married couples, or civil partners, should get any tax benefit, and it would be a sensible tax reform as a precondition of marriage equality to abolish the married persons’ allowance, and instead increase child benefit, which would more directly address the original social purpose. This would also mean that the legal advantages of marriage and civil partnerships would be practical ones relating to childcare, probate, etc. And there would be no advantage in people getting married just for a tax rebate (how romantic is that!)

Martel – do you apply this logic to other “voluntary associations” that wish to discriminate on grounds of gender, ethnicity or sexuality? A church is no different to a football club, a regimental association, a working mens club or any other institution.

Either you believe the state has the right to enforce human rights and maintain human dignity or you don’t.

“In a multi-cultural society, there will often be immigrant communities who reflect a miture of both the social expectations of the British society they now live in, and also attitudes and beliefs from their heritage.”

Fine – but why should that allow a parish church in a village where it is the only religious building to tell two gay villagers that they are to be denied the same rights as everyone else? That is state sanctioned discrimination.

Vanya: How can someting be recognised in law but not defined by the state?

Well, there are two things there.

The government is not the whole of the state; and English common law could arguably be regarded as providing legal definitions.

But Dr Sentamu seems to be arguing that marriage is defined by scripture (and arguably also by reference to the natural world), and that this definition is so fundamental that it cannot be revised by politicians.

Dan: Fine – but why should that allow a parish church in a village where it is the only religious building to tell two gay villagers that they are to be denied the same rights as everyone else? That is state sanctioned discrimination.

You do give the impression of being someone who hasn’t thought about this at all.

They can get married at any building registered to conduct civil ceremonies, or at a religious building belonging to a faith who is willing to marry them.

Many churches will not allow people to marry if they are previously divorced, or even if they are not regular church goers.

If the gay couple are not members of that church, why should they feel any entitlement to use its services to get married.

If they are members of that church, then that is a choice they have made.

Your position is for the state to define what religious people are allowed to believe and to do. Which is intolerable.

“If the gay couple are not members of that church, why should they feel any entitlement to use its services to get married.”

What if the gay couple are refused membership of that church on the grounds that they are gay? Should that be legal?

And, if so, do you apply the same logic to working mens clubs? Do you extend it to race and ethnicity? Even the Tories now accept that private clubs do not have the right to discriminate on these grounds.

@25 Well, firstly there is the right to Religious Liberty in the UN human rights charter, which refers to the right to choose your beliefs and to live and worship by them without harassment and persecution by the state.

Secondly, all the voluntary associations you mention live by a set of practices you subscribe to or don’t. If you don’t agree with them i.e. that you should play cricket rather than football you can join another association or seek reform within that association.

It is pretty logical that if you want to get married in, for example, a Roman Catholic church or Mosque or Synagogue you should agree with their definition of marriage.

@26 So you believe that the state should force places of worship to perform ceremonies that are against their beliefs?

This is unworkable, do you think a priest, imam or rabbi will perform a ceremony that is against their fundamental beliefs.

It also begs the question, why would a person with no attachment to the doctrines of a faith wish to get married in its place of worship?

#23 Thanks Andy there is some good clarity here and also you raise some important issues concerning multi culturalism and particular faith communities that I think I would want to also affirm and recognise need to be grappled with.

But I think your points also highlight issues of power. That is why I find Peter’s intervention appropriate because as he is addressing the established church which as an institution is primarily led by those who are not particularly marginalised or vulnerable in society and claims a particular privilaged national and universal legitimacy within the english political system.

On a personal note when Peter was thrown out of the pulpit at Canterbury a number of years ago during Carey’s reign the church i was vicar at at the time invited him to have our pulpit to say what he thought to the church and debated and discussed with him afterwards. Interestingly the NF turned up in small numbers much to the outrage of members of many people in the local community who weren’t churchgoers who had little or no concern about Peter speaking at the church but were incensed that the NF should come hassling ‘their’ Vicar!

KrisS: it might be useful if you could, briefly, explain to people who don’t yet understand it, why you distinguish between faith groups and other social institutions.

OK

The very relevant point made by the archbishop of Canterbury, Dr Rowan Williams back in 2008 is that religious faith and its entailed commitments are less negotiable than secular ones, as believers hold that they have a sacred covenant with divine law.

However, progressive theologians and scholars of all faiths seek to distinguish between those aspects of their religious belief that are fundamental – or in terms of their own belief systems divinely ordained – and those aspects which are a reflection not of divine will, but of social and cultural accident.

In this sense, it is a false polarisation to see progressive politics as the promotion of secular values over religious ones. Rather ideological and political struggle is carried out within religious communities, between those who are conservative of traditions, and those who seek convergence with the prevailing liberal ethos of civil society.

A very interesting example of this is the conflict within the Episcopalian or Anglican communion over the issues of ordaining gay vicars. Another example is the organisation, Catholics for Free Choice, a US based religious charity that employs 20 staff and has an annual expenditure of $3000000 that acts “to serve as a voice for Catholics who believe that the Catholic tradition supports a woman’s moral and legal right to follow her conscience in matters of sexuality and reproductive health.”

As this sort of struggle goes on within religions, it is therefore counter-productive for the state or political campaign groups to seek to force religious believers to choose between their faith and secular values. As Dr Williams explains:

“The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the umma or the Church or whatever) is the only significant category, so that participation in other kinds of socio-political arrangement is a kind of betrayal. It also occurs when secular government assumes a monopoly in terms of defining public and political identity.”

The point here being that religious and community identity is very important to many individuals, and it should not be the role of the state to polarise divided loyalties and identities. This can only force greater misunderstanding, and strengthen the hand of conservative social and political forces within religious communities and organisations, who define their faith community by its points of departure from civil society. In extreme cases it can exclude people from political and social participation – for example naive secularists who do not recogise that many Muslim women choose to wear a veil, and some prefer to be segregated from men, can place obstacles to the participation of such women, by insisting on imposing their own secularist and atheist values upon them. Exclusion of women because of their cultural and religious choices then impedes any further mutual development towards greater understanding and social convergence.

Choice is the key argument here. Dr Williams refers to an article by the Jewish legal theorist Ayelet Shachar, in “Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001)”, he argues: “if one approaches it along the lines sketched by Shachar in the monograph quoted earlier, it might be possible to think in terms of what she calls ‘transformative accommodation’: a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that ‘power-holders are forced to compete for the loyalty of their shared constituents’

This exhibits a very nuanced understanding about how assimilationist pressure tends to promote social convergence. By ending the situation where people need to choose between wider society and their culture, we engineer a situation where individuals can choose which code to adopt. Of course any choice to use religious arbitration would have to be mutual and based on free and informed consent. This encourages the secular legal authorities to respect the plurality of our society, and recognise people’s different senses of identity; and simultaneously it puts pressure on the religious communities to evolve towards the wider norms of society.

This should of course also provide a framework for religious organisations to work within.

Part of the reason that the debate about multi-culturalism seems so problematic is that it cannot be easily reconciled with liberal theories of the state, that can be characterised as Centralist-Atomist, where is there is no mediation between the central power of the state and private individuals – and this fails to give adequate recognition of ethnic, national and religious minorities. In fact, in modern nation states the dominant culture claims to be neutral and universal, but is of course just as particular and contingent as any sub-cultures contained within that state’s borders. The prevailing liberal theory provides no recognition of the various forms of collective and corporate identity that individuals are socially located within.

The particular problem is that the liberal theory of the nation state, (and one uncritically accepted by most Marxists following the coincident views of US President Woodrow Wilson and Vladimir Lenin), is that legislative and constitutional entities must be territorial, and therefore in any one state, only one national culture is hegemonic. This is carried on today by those who champion a universalist secularism, irrespective of the actual wishes, needs or desires of people who belong to minority communities.

The contribution of the Marxist theorists Karl Renner and Otto Bauer was to propose how multi-culturalism can work by permitting rights to intermediate corporations. This is incompatible with the procedural equality in contemporary liberal democracies, as it instead recognises differential rights for people who self-identify with religious or ethnic sub-cultures.

RevdRay: Interestingly the NF turned up in small numbers much to the outrage of members of many people in the local community who weren’t churchgoers who had little or no concern about Peter speaking at the church but were incensed that the NF should come hassling ‘their’ Vicar!

Brilliant!

I take your point Ray about power, and that Peter is chalelnging authority figures. Personally I still find it inapproporiate. It is one thing helping to give voice to a disident strand within a religion; it is another to substitute yourself for it, and to project your own values onto a faith community from outside.

Andy Newman: Religious significance was given to marriage because having a child together is a pretty amazing thing…

Andy, I am sympathetic to most of what you have written here, but I think this is going a bit far. I suspect that the ways in which most of us find this experience “pretty amazing” is very different from the feelings of mothers and fathers in ages past. It’s quite at odds with the sort of analysis you present elsewhere.

“The contribution of the Marxist theorists Karl Renner and Otto Bauer was to propose how multi-culturalism can work by permitting rights to intermediate corporations.” Wasn’t this all in the context of trying to find a way of constructing some kind of ‘socialism’ within the Austro-Hungarian Empire, with its patchwork of largely rural nationalities? Since then, pretty much all the multi-ethnic European empires have disintegrated, apart, perhaps arguably, from the Russian Federation. So, more than a hundred years later, in a very different situation, I wonder how relevant these ideas are in present-day Britain? Happily, on the British mainland at least we don’t really have the sort of segregated communities and rampant nationalism which characterised the last decades of the Habsburg state. I hope that remains the case.

In practice what would ‘cultural autonomy’ add to what is already effectively available for those who want it through making use of freedom of speech, the press, assembly and association together with the right to education in one’s mother tongue as eg for speakers of welsh and gaelic?

Unless the state is not only to ‘recognise’ cultural and faith associations in an additional special sense of mediating some citizenship rights through one’s cultural or religious identity. In which case there is the danger of the state ending up effectively assigning an identity to its citizens.

In this country the question of whether eg the Ahmadiyya are ‘really’ Muslims is of no concern except to those who choose to make it so. In Pakistan it can make a difference to your civic status. Similarly with ‘who is a Jew’ in Israel.

To be fair to me though the Czech nationalists were not interested in using it as an experiment in multi -culturalism; and they saw it as a mechanism for segregating not assimilating different cultures

But in the eyes of the state they don’t waive their civic rights through getting a religious marriage or divorce. If denied their wishes or their rights as they see them by the religious court they can still go to the secular registry office or divorce court. Of course their resulting marriage or divorce will not be recognised by their coreligionists. But that is a matter for them, not for the state [unless unlawful measures of coercion are applied to them].

I am reminded of the case of Lord Mackie of Clashfern, a Scottish law lord under Thatcher, and a member of a very strict and particular Presbyterian kirk. A Scottish judge who was a Catholic died and all his judicial colleagues attended his Requiem mass as a mark of respect – including Lord Mackie.

He was then summoned by the elders of his kirk on a disciplinary charge for having attended a Popish ritual. So he simply resigned from that kirk and joined another slightly more flexible. They were acting within their rights, and so was he.

While the Slovaks were willing allies if the Nazis and even voluntarily paid the Nazis to take their Jewish population away ; the Czech nationalists were as committed to racial supremacism as anyone in Europe.

I am just pointing out that intentions matter.

I would say that the ideas of Dr Rowan Willams are a more useful guide to living in a multi faith society than Czech Nazis. !

Andy Newman: It is of course important that civic rights and identities are based upon equality and the choice of enforcing those equal civic rights is not compromised for anyone.

However people could also opt to waive their civic rights, as someone does for example by getting a divorce through a Beth Din

A Beth Din divorce is not a recognised divorce for civil law purposes and is not enforceable either generally by the civil courts. So there now exists a paradoxical scenario whereby a Jewish wedding can double as a religious and effectively civil marriage (the civil papers are signed and witnessed in the Synagogue grounds typically) but a civil divorce cannot be effected the same way. So, a Jew may get a civil divorce but not a religious one or vice versa.

This is an awful scenario and one that significantly disadvantages women who can be effectively blackmailed. These ‘chained’ women number in their hundreds and it is a serious global problem. In the US, there have been partial resolutions by the introduction of pre-nups or contracts that cover divorce and that are effectively handled under contract laws rahter than family or public laws.

I agree that what should happen is that s couple who choose – and in the absence of duress – to have a jewish or islamic divorce, for example,should have that sanctioned by the law.

Of course the civil courts would still exercise scrutiny to ensure natural justice, absence of duress,etc.

I wish it were so easy. Unfortunately, religious laws rarely offer concepts of ‘natural justice’ or equity that a civil court enforce or apply.

Muslim law for example allows for a so called ‘Talaq’ divorce which can only be exercised by a man whereas the divorce requirements if initiated by a woman (‘Khula’) are far more onerous – sometimes prohibitive even as the woman effectively loses all rights. This form of divorce is more a technical procedure rather than one based on some form of mutual ‘rapprochement’ (even though this also exists within the Talaq framework). I won’t go into the intricacies of Talaq divorces, but suffice to say, Shariah law is fully skewed towards the husband.

Civil courts cannot offer equitable solutions in such cases as these would contravene Shariah laws – also where there are local or sectarian variants.

Firstly there are question of whether someone freely entered into either an arbitration agreement, or in this case to submit themselves to the judgement of a religious court.

Secondly my understading is that your couldn’t escape supervision by the civil courts over process questions, such as whether a religious court followed its own rules; whether the judgement of the court was competent in its own terms (for example it could not pronounce on matters outside its own remit) etc.

This is little different from the supervision that a court offers over privare associations.

Is there not a difference between a divorce settlement eg division of the assets, custody arrangements etc, where the decision of a religious court would be seen as a form of arbitration agreement; and on the other hand a marriage ceremony or a divorce. In the latter case I recall reading an article about the problems created by the fact that many Muslim marriages are not celebrated by clergy authorised by the state to perform marriages. The marriages therefore have no standing in British law and in the event of a marriage breakdown the woman may be left with no rights.

stephen marks: I recall reading an article about the problems created by the fact that many Muslim marriages are not celebrated by clergy authorised by the state to perform marriages. The marriages therefore have no standing in British law and in the event of a marriage breakdown the woman may be left with no rights.

This is a good and complicated example.

If someone is conducting a religious marriage ceremony, are both parties being married aware that it does not constitute a civil marriage as well? Is there deception and coercion involved? Could it even be fraud?

Of course there is perhaps nothing wrong, some small baptist chapels are not licenced to conducted marriages, for example, and therefore conduct the religious ceremenony, but send people off to the registry office for the legal bit.

The state’s relationship with religious groups needs to be a bit carrot and stick. For example, by licencing religious premises as able to also regsiter a civil marriage it offers some supervision; and at the same time this operates to allow individuals to chhose between a place of worship who can offer the full service, and ones that can’t.

Then of course there is the question of polygamy (polygyny) which certain religious traditions find quite acceptable, but which conflict entirely with our marriage laws as well as all considerations of sexual equality.

But if we start allowing, or even advocating, the right of religious institutions to shape matrimonial relationships for their (willing or captive) clientele, on what grounds could we justify discriminating against religious currents which allow men (at least, powerful men) more than one wife?

Hasanyi_Janos: This is often overlooked but certainly true.Their treatment of ethnic minorities after the war was remarkably bad.

This part of the debate rather reminds me of the last years of the Ottoman Empire. For years and years the Ottomans were largely unconcerned by issues of nationality and race. And providing you paid your taxes they didn’t really care too much aboutt your faith either. Read Mark Mazowers “Salonica City of Ghosts”. As the Ottoman state began to disintegrate and at the same time was forced to “modernise” nationalism did become an issue. Hitler had a good line on the genocide of the Armenians I believe. The point here is that the left has always been too soft on the pernicious effects of nationalism which originated in early modern capitalism.